Beattie v McGrady [1993] QSC 337

:>c. 7'3(3 3 7 \ ~\"'"'\."\.'" IN THE SUPREME COURT OF QUEENSLAND . TOWNSVILLE No. 8 of 1993 BETWEEN: NICOLL BEATTIE (Applicant) AND: THE HONOURABLE TONY McGRADY (Respondent) REASONS FOR JUDGMENT- CULLINANE J. ( Judgment delivered In this matter the successful Respondent seeks an order that the Applicant pay his costs of the application under the Judicial Review Act 1991 as amended. The review Application concerned a decision by the Respondent to recommend to the Governor-in-Council that a mining lease be granted. There had been a hearing in the Mining Warden's Court at which the Applicant, as an objector, and a number of other objectors were represented. Following the Mining Warden's recommendation that the lease be granted, the Applicant and others made various representations to the Respondent. The Respondent ordered a further hearing by the Mining Warden limited to a specific issue. Again, the Applicant and other objectors were represented at the hearing. -- 1 of 5 -- 2 Upon the Respondent deciding to recommend to the Governor-in-Council that a mining lease be granted in accordance with the various recommendations of the Mining Warden, the Applicant initiated proceedings under the Judicial Review Act 1991 . The Applicant initially sought the order on four grounds, full particulars of which were provided. As appears in the judgment, these were virtually all abandoned at the hearing. The Respondent did not object to the Applicant raising what amounted to, for all practical purposes, a new case at the hearing and the matter was contested before me upon this basis. The Applicant failed in respect of each ground. The Respondent has applied for an order that the Applicant pay the Respondent's costs of the application. The Applicant has made application under s. 49(1)(e) of the Judicial Review Act 1991 for an order that the Applicant bear only his costs of the proc~eding. __- A good deal of discussion took place before me as to 1~ffect of s. 49. the-~ \ J ----·~~-- It was not contested that I have power to make an order of the kind sought by the Respondent. Whilst the Respondent raised some questions as to the time at which the Applicant should make an order for costs under s. 49(1)(e) by reference to the terms of rr. 10 and 15 of the Rules of Court Relating to Applications for Judicial Review, I am satisfied that there is nothing to prevent the Applicant making such an application at this time. -- 2 of 5 -- l 3 It was common ground that the provisions of s. 49(1) do not apply to the Respondent and I am satisfied that the costs of the Respondent are at large, subject to the express provisions of s. 49 insofar as they relate to an application of the kind here made by the unsuccessful Applicant. It seems that the effect of s. 49 is to enable orders to be made at the outset of proceedings or in the course of them but I am satisfied that an application of this kind may also be made at the conclusion of such proceedings. This is to be contrasted with an application under s. 49(1)(d) where there would be no point in making such an application at that time. Sub-section 2 of s. 49 sets out a number of factors which are to be considered on an application of this kind. provides as follows: "(2) In considering the costs application, the Court is to have regard to - (a) the financial resources of - (i) the relevant applicant; or ( ii) any person associated with the relevant applicant who has an interest in the outcome of the proceeding; and (b) whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant; and (c) if the relevant applicant is a person mentioned in subsection ( 1 ) (a) - whether the proceeding discloses a reasonable basis for the review application." This The three factors are each to be considered. There is nothing to indicate that any one factor should carry greater weight than any other factor. -- 3 of 5 -- 4 Each has to be considered in the light of the circumstances of the particular application. I turn now to the consideration of these in the present case. So far as sub-s. (a) is concerned, the affidavit of the Applicant's solicitor sets out the financial position of the Applicant and his family. I accept that the making of an order for costs would have a significant impact upon the financial position of the Applicant and his family, but it is clear that the Applicant has significant assets and is far from being impecunious. His position is not one which would weigh heavily , against the making of the order which he seeks but on the other \/ hand it is not one which I would regard as substantially in his favour. It is at best for him a neutral factor in the present case. As far as sub-s. (b) is concerned, the legislation clearly requires the Court to consider whether the proceedings involve an issue of general importance or involves the elucidation of some point of principle or construction or which affects in some way the public interest, in addition to the personal rights or interests of the relevant Applicant. In this case the application concerns the granting of a mining lease to which a number of people objected. The Applicant, as the resident closest to the mining lease, had a particular interest. However, his interest in my view has to be regarded as entirely personal and there is nothing in the material which was placed before me which would suggest that any question of general importance, or which involved the public -- 4 of 5 -- ( \ 5 interest, was involved in these proceedings. In relation to this aspect of the matter, the Applicant does not, in my view, derive any support. So far as sub-s. (c) is concerned, it is not possible to form any conclusion as to the grounds which were abandoned. The only conclusion which can be reached is that those advising the Applicant must have considered that the grounds were untenable. The Applicant, as I have said, failed on each of the grounds advanced before me. Again in relation to this aspect of the matter, it seems to me the Applicant has not established that there is anything which ( militates in favour of making the order sought. In the circumstances of this case, I am satisfied that the appropriate order to make is to order the Applicant to pay the Respondent's costs of and incidental to the application to be taxed. ( -- 5 of 5 --